TOPEKA – (May 27, 2016) – The Kansas Supreme Court today upheld a key provision of the law enacted during the 2013 special session of the Legislature, Kansas Attorney General Derek Schmidt said today.
The Court held that the procedural changes to the ‘Hard 50’ statute enacted by the Legislature in response to a U.S. Supreme Court ruling may be applied retroactively to cases in which the crime was committed before September 2013. The Court’s majority held that the change in sentencing procedures was procedural in nature and therefore did not violate the ex post facto clause of the United States Constitution.
“Today’s ruling confirms the decision to have a special session in 2013 in order to promptly repair the state’s ‘Hard 50’ law was the right choice for public safety,” Schmidt said. “The effect of today’s Supreme Court ruling is to make possible the preservation of ‘Hard 50’ sentences that were imposed before 2013 by allowing resentencing of those defendants under the new procedure that complies with federal law. I again thank Governor Brownback and the legislators who participated in the special session to repair the law.”
In June 2013, the U.S. Supreme Court decided U.S. v. Alleyne, which essentially held that a jury, not a judge, must make the factual findings necessary to enhance the sentence of a criminal defendant. That decision called into doubt the validity of the Kansas ‘Hard 50’ law, which provided that in certain first-degree murders the minimum sentence that must be served before eligibility for parole could be enhanced to 50 years rather than the then-usual 25. Because of the risk that the Kansas ‘Hard 50’ statute was disabled by the Alleyne decision, Attorney General Schmidt recommended Governor Brownback call the Legislature into special session to promptly repair the Kansas statute. The Governor did so, and the special session was held September 3-4, 2013, making it the shortest special session in state history.
“The ‘Hard 50’ law has been critical for public safety,” Schmidt said. “It was the principal tool available to keep some of the most aggravated murderers off our streets and behind bars for long periods of time.”
During that special session, the Legislature repaired the ‘Hard 50’ statute for crimes going forward. It also included a provision that allowed for sentencing involving a jury, not a judge, for crimes that had been committed previously. It was that latter provision – the so-called retroactive application of the new sentencing procedure – that was affirmed by the Supreme Court today.
The decision affirming the retroactive sentencing provisions was State v. Bernhardt. The Supreme Court also decided a second ‘Hard 50’ case today, State v. Walker, in which it unanimously affirmed another provision in the 2013 amendments to the ‘Hard 50’ law regarding the procedure required when the ‘Hard 50’ sentenced is based on a defendant’s prior criminal convictions rather than on other aggravating factors.